The government has been handed a hot potato by the Supreme Court, which has ordered the illegal settlement Migron removed.

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STANDING AT THE EDGE OF the hilltop outpost of Migron in the West Bank, a few
kilometers east of the Palestinian Authority capital Ramallah, Itai Harel points
out the neighboring Jewish settlements and the Palestinian villages that dot the
barren mid-August landscape.

“From our point of view this is the land of
Israel waiting for her sons to return,” Harel says with quiet
determination.

“When we came here it was all rocks and boulders like
this,” Harel says, his green eyes squinting in the sun. Harel, 37, an
ex-paratrooper still in the army reserves, founded the settlement in 1999 with
two other men who have since left, naming it after the village of Migron, which
is mentioned twice in the Bible.

Harel is broad shouldered and wears a
wide-brimmed hat to protect him from the sun while he works outdoors, providing
therapeutic horseback riding lessons to troubled youth. Under his cowboy
hat he wears a yarmulka. Dressed in a fuchsia shirt advertising his
riding business and a pair of shorts, Harel, who has a master’s degree in social
work, tells The Report that most of the residents of Migron work in service
professions, such as social work, nursing and teaching, and that most of the men
serve in IDF combat units and do reserve duty.

The settlement is perched
high above Highway 60, five kilometers north of Jerusalem between Ofra and the Shaar
Binyamin Industrial Park. To get there one must get off Highway 60 and climb a
long, winding paved road that cuts through fields of desiccated wild wheat,
thorns and thistles, and scattered boulders the color of bones.

Migron is
well-known in Israel as the largest of the wildcat settlement outposts in the
West Bank, established without prior government approval and without reference
to the government’s plans for settlement in the region. Yet, despite its illegal
status and the forbidding terrain, since its founding, Migron has grown to a
population of some 50 families living in mobile trailers, comprising some 250
residents, many of them sons and daughters of the first generation of settlers
in the West Bank, who grew up steeped in Biblical imperatives and a passionate
love for the land.

Harel has impeccable settler credentials. He is
the son of Judea and Samaria Council founder Yisrael Harel and grew up in nearby
Ofra, the flagship of the settlement movement. Migron residents have made
some feeble, almost futile, efforts to make the settlement pleasing to the eye –
beds of flowers at the guard post, sapling trees around the settlement that have
not yet had time to put down deep roots or grow tall enough to provide shade in
the blistering heat. But not much can disguise the ugliness of the elongated
rectangle caravan homes set up in a circle on the hill top, the hanging wires
that surround and crisscross the settlement and the bare, barren look accented
by ubiquitous large boulders.

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Children’s bicycles and abandoned trash are
strewn in front of the trailers. Every house flies an Israeli flag as if
Independence Day comes in August instead of May. Harel points out the
kindergarten, playground, and synagogue. “Every tree that you see here,
we planted,” he says, plucking a ripe fig from a tree near his house. His six
children were born here.

But in about seven months the trees might be the
only thing that will remain here. In early August, in a precedent-setting
ruling, a three-judge panel of the High Court of Justice ordered the government
to remove the settlement. And while the courts have issued similar
rulings before, this time the court set a clear deadline – March 31,
2012.

The settlement of Migron has thus been thrust into the public
limelight as a symbol, a test case and a lightning rod.

TO DATE NO
ISRAELI government has mustered the will to dismantle a West Bank settlement of
this size. Violent clashes erupted in January 2006 when the army moved in
to dislodge a few families in a small outpost called Amona. The settlers were
reinforced by a crowd of about 3,000 supporters and the confrontation
degenerated into violence that left 200 soldiers and settlers injured. It is
likely that radical “hilltop youths,” as these youths who set up these illegal
settlements are called, will mobilize again to help the Migron settlers resist
the eviction.

Both sides of the deep ideological divide will be watching
to see what the government will do in the Migron case.

“Migron is a
symbol. It’s the largest, the most famous of the outposts,” Attorney Talia
Sasson, former head of the special task division in the State Attorney’s office,
who authored a seminal report on the legal status of settlement outposts in
2005, tells The Report. “The Americans have conclusively rejected its
existence. This place is entirely illegal, even from the point of view of
Israel, and not just from the point of view of international law, and Israel has
done nothing to dismantle it.

“Everybody is watching to see what the
government will do in March,” Sasson continues. “I see great difficulty
for the prime minister to do it, I doubt he will, and the implication is that
our very democracy is at stake.”

Shlomy Zachary, one of the attorneys who
represented the anti-settlement group, Peace Now, and the Palestinian landowners
in the case, echoes her words.

“This is a final judgment and if we are a
democratic state, the authorities must comply,” he tells The Report. “If not,
it’s the end of democracy. This is a unique and unprecedented judgment and it is
also quite a brave judgment. It signals to the Palestinians, who are not part of
the political process inside Israel, that the only body that can defend their
rights is the court. This gives a lot of hope to weak people who are deprived of
the political process under a military regime. It’s a light at the end of the
tunnel.

“There is no doubt that this judgment is a turning point in the
relations between the state, the court and the settlers. The state will have to
choose if it is going to back the outlaws, or if it is going to do the right
thing as a democratic sovereign state,” Zachary states.

Israel Harel,
Itai’s father, sees things from the polar opposite viewpoint. He is founder and
former chairman of the Council of Settlers in Judea, Samaria and Gaza, the
settlers’ umbrella coordinating group, and one of the founders of Gush Emunim,
the original settler movement.

“This will not destroy the settler movement, but it
does create bad blood against the High Court, which is like an arrow shot
against us by the extreme Left,” he says. Referring to Peace Now, he
adds, “what they cannot accomplish on the political level, they are doing
through the High Court of Justice.”

THE COURT’S DECISION CAME in response
to a 2006 petition by Palestinian landowners in two neighboring Arab villages
and Peace Now, who sought the removal of Migron on the grounds that it was built
illegally on private land.

Nobody disputes that the land was barren and
uncultivated, but that does not prove that the land was legally available. Itai
Harel says that when he founded the settlement, the land was listed as “state
owned” on official Housing Ministry documents. It is the state that paved the
road leading to Migron and hooked it up to water and electricity, investing
about four million shekels (approximately $1.16 million) in its infrastructure,
according to Peace Now.

He further contends that for the first seven
years of Migron’s existence, the Arab owners did not complain about the
settlement on the barren, rocky hill. According to Harel, Peace Now singled out
Migron as a test case and searched out the Arab owners, or their descendents,
and convinced them to sue.

“Nobody knows why the Jordanian clerk
registered the land in the name of some villagers as it was never developed or
lived on,” says Harel. “It was empty and rocky the entire time. According to
Ottoman law, land can be claimed as private, if it is developed for a period of
ten years, and the land in Migron was never developed until we
came.”

Dorit Beinisch, President of Supreme Court, thinks
otherwise.

“There is no doubt that according to the law a settlement
cannot be built on land privately owned by Palestinians,” she wrote in her
ruling calling the settlers of Migron “lawbreakers.”

Noting that efforts
to negotiate a voluntary move by the 250 settlers at Migron to a neighboring
settlement had dragged on for nearly three years, the court set the March 31
deadline and called on the state “not to drag its feet in enforcing the law.”
The three-judge panel said that after five hearings and much delay there was no
justification for further violation of the law and of the landowners’ rights to
their property.

“This was about an outpost illegally constructed on
private land, which the state too agreed should be evacuated,” Beinisch
wrote. “There is no dispute between the petitioners and the state that
the outpost sits on private and recognized Palestinian land, and that the
outpost was built without permission. Moreover, the work for establishing
the outpost and expanding it was done with disregard to the orders to raze
it.”

The residents of Migron complain that the issue of land ownership
was never adjudicated by the High Court and that their side was never heard.
They say the case should have been sent to the District Court in order to decide
the ownership issue.

“The people in Migron feel that this is political
and that it is a part of the agenda of the High Court. For me as a lawyer, it’s
difficult to convince them that they are wrong,” says Itzchak Miron, the lawyer
who represented Migron. “The High Court decided against them without checking
the ownership question, or referring to any of their claims, ignoring them
completely,” Miron tells The Report.

THE PETITION HAS ALREADY made a
significant impact, according to Hagit Ofran, director of the Settlement Watch
Project at Peace Now.

“Since we have filed our petition, we see that
there are no new outposts being built and there is almost no construction on
private Palestinian land,” she tells The Report. “They realize that if they do it, we
will go to court and they will not be able to defend it. This is something that
we can see as an achievement of our petition.”

If past attempts to
dismantle outposts are an indication, the evacuation of Migron will most likely
be violent causing a further rift between settlers and the rest of Israeli
society.

“I can’t control what will happen here and I’m not saying this
as a threat,” says Itai Harel, who still holds fast to the belief that a
solution will be found that will make the evacuation unnecessary.

“I am
aware of the gravity of the situation, but I believe we will still be here years
from now,” he says, with the knowledge that settlements such as Migron have
outlasted previous attempts to dislodge them.

Both sides of the dispute
hold fast to hopes.

Says Ofran, “I hope that they [the settlers] will be
wise and accept the rule of law, and not drag Israel into another painful and
violent upheaval.”

Israel Harel says: “I hope that in the seven months
that they have, the government will make a move that will convince the High
Court that the land is owned by the government or else acquired in one way or
another by paying a higher price. The government can even confiscate
it.”

The implications of the case are thus wide-ranging. Will Migron be
the first domino to fall, encouraging anti-settler activists to bypass the
political process by going straight to the High Court? Or will the government
circumvent, in one way or another, the court ruling?

Over the years, the
government has established legal guidelines for approving settlements,
subsequently refined according to Supreme Court decisions, the most significant
of which was handed down in October 1979 in the Elon Moreh case. In that case,
the court ruled that the state could not seize private Palestinian land for
building settlements. After the court’s decision, the government
established rules for new settlements, including the need for full Cabinet
approval, a municipal building plan and approval by the local IDF commander of
the settlement’s municipal boundaries. Another important criterion is that a
settlement could be established only on state land.

The term “state land”
includes uncultivated rural land not registered in anyone’s name and land owned
by absentee owners, which were both categories of public land under Jordanian
and Ottoman law. This excludes land registered in the name of someone other than
an absentee owner, land to which a title deed exists, and land held by
prescriptive use for a period of 10 years.

Thus, while all settlements in
the West Bank may be considered illegal according to most interpretations of
international law, when Israelis refer to “illegal settlements,” they are
referring to outposts such as Migron, which were set up without any government
approval. According to Peace Now, there are approximately 100 such illegal
outposts.

“You see that hill just beyond?” asks Itai Harel and points to
a nearby barren hill. “It is listed as state-owned land and I could have founded
Migron there. I didn’t know that there were Palestinians claiming ownership
here. But I’m not sorry. I believe it’s all for the best despite the
difficulties. We’re convinced we’re doing the right thing and we’re willing to
pay the price.”

Just a few meters from Harel’s home is a mound of more
than 50 cardboard boxes piled at the side of one of the trailer
homes. Less than two weeks after the High Court rendered its decision
ordering Migron’s demise, a new family is moving in.

Tzvi Gilo, 29, a
full-time yeshiva student, comes out of the house and, it being mid- August,
stands with a reporter in the shade of a fig tree. Speaking softly and
confidently, he explains why he has just moved from Jerusalem with his wife and
three small children, the oldest 4.5 years old and the youngest 3 months old, to
a community whose days are numbered.

“We have known this community for
several years and these are good people united, with a variety of professions,
teachers, nurses, social workers, a healthy place to raise children,” he tells
The Report. “I’m not worried. If, God forbid, worse comes to worst, we
will have to rely on God’s help. But I believe one day my children will build
their homes here, and maybe their children as well.”

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